Bell v. Toothsavers, Inc.

213 A.D.2d 199, 623 N.Y.S.2d 579, 1995 N.Y. App. Div. LEXIS 2601

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1995
• Status: Published

Opinion

—Order of the Appellate Term of the Supreme Court, First Department (Parness, J. P., Miller and Glen, JJ.), entered February 16, 1994, which affirmed an order of the Civil Court, New York County (Salvador Collazo, J.), entered May 4, 1992, vacating a default judgment against Toothsavers, Inc., denying plaintiff’s motion for summary judgment against defendant Lynn, and dismissing plaintiff’s appeal from an order of the same court and Justice, entered November 30, 1992, which denied plaintiff’s motion for reargument, unanimously affirmed, with costs.

We agree with Appellate Term that defendant Toothsavers’ unintentional default was properly vacated upon a showing of a meritorious defense that it was not responsible for any of plaintiffs dental care and treatment. As the Civil Court pointed out, it is the policy of the courts to favor dispositions on the merits (see, Lirit Corp. v Laufer Vision World, 84 AD2d 704). Summary judgment as against defendant Lynn based on his failure to comply with a conditional preclusion order directing his production of certain documents was properly denied for failure to show that his lateness in producing the documents was willful (see, Dauria v City of New York, 127 AD2d 459, 460), or even, we would add, that he would be unable to defend the action were records precluded. Plaintiff’s appeal from the November 30, 1992 order was properly deemed to be from an order denying argument, and was thus properly dismissed as nonappealable (Rivera v Cambridge Mut. Ins. Co., 136 AD2d 688, 689). We have considered plaintiffs remaining points and find them without merit. Concur— Sullivan, J. P., Rosenberger, Kupferman, Asch and Mazzarelli, JJ.